01985560
02-11-2000
William Dail, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
William Dail v. Department of the Navy
01985560
February 11, 2000
William Dail, )
Complainant, )
)
v. ) Appeal No. 01985560
Richard J. Danzig, ) Agency No. 9800027C01
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
DECISION
On July 7, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on June 29, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq. <1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of race (White) when:
Management failed to take steps to mitigate the effect of a
reduction-in-force which resulted in complainant being downgraded from
the position of Supervisory Employee Development Specialist, GS-235-13,
to Employee Development Specialist, GS-235-12, effective March 1, 1998;
As a result of the reduction-in-force, management failed to provide
complainant with the "best offer" and assign complainant to the position
of Equal Employment Manager, GS-260-12, Naval Aviation Department
(NADEP); and
Management violated merit procedures and principles associated with
a reduction-in-force when, on April 6, 1998, management announced a
reorganization, reassigning complainant to an undescribed job in the
new Customer Service Office.
The agency dismissed issue (1) of complainant's complaint on the grounds
that complaint previously filed an appeal with the Merit Systems
Protection Board (MSPB) on that issue. The agency dismissed issue
(2) for failure to state a claim and on the grounds of untimely EEO
Counselor contact. Specifically, the agency noted that complainant
accepted an offer to be placed in the Employee Development Specialist,
GS-12 position, on February 3, 1998, but did not contact the EEO Office
until April 13, 1998, sixty-nine days after he was aware that he was not
offered the EEO Manager position. In addition, the agency stated that had
complainant timely contacted an EEO Counselor, his complaint would still
be dismissed for failure to state a claim since the position in which he
was placed, Employee Development Specialist, was the same grade and pay
as the EEO Manager position. Finally, the agency dismissed issue (3) on
the grounds that complainant failed to state a claim. The agency noted
that complainant was reassigned from the EEO/Employee Development Section
to the Customer Services Office at the same grade and pay; therefore,
the agency claimed complainant did not experience an adverse impact.
On appeal, complainant states that on April 6, 1998, he was notified that
he had been reassigned to a newly established Customer Services Office,
Civilian Human Resources Office (CHRO)- East. Complaint claims that he
timely contacted the EEO Office on April 13, 1998. Complainant states
that he filed an appeal with the MSPB on April 15, 1998, to determine
if he was entitled to an MSPB hearing. Complainant notes that the MSPB
dismissed his appeal as untimely on June 2, 1998. Complainant states
that although the MSPB dismissed his appeal concerning his change to a
lower grade, the Board did not consider the merits of his allegations
nor did the Board dismiss his claim that he was assigned to an undefined
job in the Customer Services Office, CHRO-East, based upon prohibited
personnel practices. In addition, complainant states that he suffered an
adverse impact associated with his reassignment, including fragmentation
of responsibilities and emotional distress as a result of management's
actions.
The record shows that on November 5, 1997, as part of regionalization,
complainant was issued a notification of a lower grade position through
reduction-in-force procedures to the position of Labor Relations
Specialist (GS-233-12). On February 3, 1998, complainant was issued
an amended notification of reduction-in-force and offered the lower
grade position of Employee Development Specialist (GS-235-12), which
he accepted. On February 6, 1998, complainant was issued a second
amendment of the reduction-in-force notice. Complainant signed this
notice, indicating his acceptance of the lower grade position of Employee
Development Specialist (GS-235-12). Then on April 6, 1998, a second
reorganization was done which resulted in the creation of the newly formed
Customer Service Office. As a result of this reorganization, complainant
was placed in charge of the Customer Service Department. The record
shows that on April 15, 1998, complainant filed an MSPB appeal in which
he challenged the agency's action changing him to a lower grade from
the position of Supervisory Employee Development Specialist (GM-235-13)
to the position of Employee Development Specialist (GS-235-12). In a
June 2, 1998 decision, the MSPB dismissed complainant's appeal based on
the fact that the appeal was untimely filed.
With regard to issue (1), we find that the agency properly dismissed
this matter on the grounds that he raised the same issue in a previous
appeal to the MSPB. Complainant initially filed an appeal with
the MSPB challenging his RIF assignment to a lower grade position.
In the present case, complainant again challenged his reassignment
resulting from the RIF. Volume 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.302),
requires an aggrieved employee to elect between filing a mixed-case appeal
or a mixed-case complaint with the agency. Since complainant previously
raised the same RIF issue in an MSPB appeal, he cannot now challenge
the RIF in the EEO process. 64 Fed. Reg. 37,644, 37,656 (1999) (to be
codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(4)).
With regard to issue (2), we find that while the agency dismissed this
claim for untimely EEO Counselor contact and failure to state a claim,
we find that the matter is more appropriately dismissed pursuant to 29
C.F.R. �1614.107(a)(4). In issue (2), complainant alleged that he was
subjected to discrimination when as a result of the reduction-in-force,
management failed to provide him with the "best offer" and assign him
to the position of Equal Employment Manager. Upon review, we find
that this matter is inextricably intertwined with issue (1) involving
the agency's failure to mitigate the effect of the RIF. Consequently,
since complainant appealed issue (1) to the MSPB, we find that issue (2)
is inextricably intertwined with that matter and is similarly subject
to dismissal pursuant to 29 C.F.R. �1614.107(a)(4).
Finally, with regard to issue (3), we find that the agency improperly
dismissed this issue for failure to state a claim. In the present
case, complainant claims that as a result of discrimination, the agency
altered the terms and conditions of his employment by reassigning him
to a position in a different competitive area. Complainant alleges
that based on his race, the agency reassigned him to the newly created
Customer Service Office to insure he would no longer be involved in
the EEO process. Thus, the agency's argument that complainant's salary
and grade were not altered would go to the remedial relief available to
complainant and would not alter the need to address whether complainant
was subjected to employment discrimination.
Accordingly, we find the agency properly dismissed issues (1) and (2) of
complainant's complaint for the reasons set forth herein. The agency's
dismissal of issue (3) is hereby REVERSED and issue (3) is hereby REMANDED
to the agency for further processing in accordance with the Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claim in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claim within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to the
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant also has the right to file a
civil action to enforce compliance with the Commission's order prior
to or following an administrative petition for enforcement. See 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant has the right to file a
civil action on the underlying complaint in accordance with the paragraph
below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407
and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. �
2000e-16(c)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS
OF RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the
absence of a legible postmark, the request to reconsider shall be deemed
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604).
The request or opposition must also include proof of service on the
other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court WITHIN NINETY (90) CALENDAR
DAYS from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, YOU MUST NAME AS THE DEFENDANT IN THE
COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD,
IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND OFFICIAL TITLE.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
February 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.